The intention has been, as much as possible, to indicate those areas where the board feels that the work that has been done is sufficient to move to closure… What we’ve also tried to do is indicate which areas are still clearly open for consideration.

The resolution names only two issues that are explicitly still open for further policy development: geographic strings and “morality and public order” objections. I’ll discuss these in a future post.

Issues considered already reflecting “the negotiated position of the ICANN community” include “trademark protection, mitigating malicious conduct, and root-zone scaling”.

But does this mean that the trademark issue, easily the most contentious of these three “overarching issues” is really sufficiently “closed” that we’ll see no more changes to those parts of the AGB?

I don’t think so. While the Cartagena resolutions say trademark protection has been addressed, it also says “ICANN will take into account public comment including the advice of the GAC.”

It may be too late for the IP community to affect changes directly, beyond the comments they’ve already filed, but the GAC, which has already aligned itself with the trademark lobby, may be able to.

Beyond the text of the resolution, ICANN chair Peter Dengate Thrush said in an interview with ICANN head of media relations Brad White:

We’ve spent a lot of time with the trademark community and come up with three new independent mechanisms for protecting trademark rights on the internet. So the sense of board and the sense of the community is that that’s probably a sufficient effort in developing mechanisms. What we now might look at is how we might enhance, tweak and improve those processes, but we’re not going to convene another process to look at yet another kind of solution for intellectual property rights.

In other words, according to Dengate Thrush, ICANN isn’t planning to create any new IP rights protection mechanisms in the AGB, but these mechanisms, such as Uniform Rapid Suspension and the Trademark Clearinghouse, could be still be modified based on comments received from the trademark lobby over the last week or so.

Most of the outcry from the IP lobby recently has called for the specifics of these two mechanisms to be tilted more in favor of trademark interests; there’s been little call for any new mechanisms.

Trademark rights protections also account for two of the 11 issues that the Governmental Advisory Committee has tagged “outstanding” which “require additional discussion”, by my reading.

The actual board resolution is hopelessly lengthy and confusing at first reading. Take this doublethink:

ICANN considers that the solutions developed to address the overarching issues of trademark protection, mitigating malicious conduct, and root-zone scaling substantially reflect the negotiated position of the ICANN community, but ICANN will take into account public comment including the advice of the GAC.

Some delegates here tell me they think this means the book has been closed on the portions of the guidebook dealing with IP protection mechanisms, for example.

(J Scott Evans, head of the IP constituency, stormed out of the room in a huff when this part of the resolution was read aloud.)

But the text of the resolution pretty clearly states that IP protections and the other overarching issues are still open for negotiation with the GAC and could be amended based on comments filed this week.

The resolution is open to interpretation with regards these three “overarching issues”.

It does, however, refer to other issues that are explicitly unresolved in ICANN’s view, namely the treatment of geographic names and the handling of “morality and public order” objections.

Both are singled out as needing more work before they can be finalized.

What does all this mean for the launch timetable? I think it means there isn’t one. Again.

[The ICANN board] Directs staff to synthesize the results of these consultations and comments, and to prepare revisions to the guidebook to enable the Board to make a decision on the launch of the new gTLD program as soon as possible.

“As soon as possible” is either meaningless or, taken literally, means the board’s next meeting. That’s likely to be late January, if previous years are any guide.